*1 in our treat- There are several instances appeal of Typographical Union
ment of the appeals. both
principles common to We repetition to Guild
adopt
appeal. recapitulation, con-
As a Guild under the paid pro- money under
tract the wages discharge pay is held to
vision for payment estate.
and entitled to out part earned the administration
That priority ad- entitled to
of the trustees is 64,. expenses, sub.
ministration a(l). § part provisions of earned within the That priority a(2) sub. is entitled to the §
provided of the Bank- section pay was the severance
ruptcy (Here Act. service.) upon given length
conditioned follows does ad-
The order which genuineness
judicate correctness legal principles
of the claims but In- down.
applicable herein set to them as appealed from are as the orders
sofar opinion, they are re-
in accord with this remanded to proceedings are
versed. The to allow with directions
the District Court accordance deny claims in
opinion. instructions.
Remanded DIST. OF SCHOOL
WESTMINSTER al. v. et COUNTY ORANGE et al. MENDEZ 11310.
No. Appeals, Ninth Circuit
Circuit
April 1947. Aug.
As Corrected *2 Kenney, Cal., Gen.,
Robert W. Atty. of and T. Westphal, Jr., Deputy Atty. A. Gen., for Atty. Cal., Gen. of amicus curite. GARRECHT, DENMAN,
Before MATHEWS, HEALY, STEPHENS, BONE, ORR, Judges. Circuit STEPHENS, Judge. Circuit petition The prays herein which for present and Counsel, relief County E. future and costs is Ogle, George filed Joel Hubbard, of Royal Deputies section Holden and E. subdivision F. Code, Ana, County Counsel, Cal., of U.S.C.A. all Santa § Judicial (14),1 and U.S.C.A.,2 section 43 of 8 appellant. for is based petition violations of Marcus, Angeles, David C. Los Cal. ers’ rights guaranteed civil by the 5th Cal., (William Strong, Angeles, of Los and 14th amendments to the Constitution counsel), appellees. for of the United States. No toas Marshall, Thurgood and Robert L. Car- application of the 5th amendment ter,. City, of New York Loren both appeal made in this and it need not be con Cal., Miller, Angeles, for Nat. Los Ass’n sidered. People, Advancement of Colored amicus petition allegations The contains curias. following effect. A number of minors (at Murray, both Will Maslow Pauli least one each from each school division Pollock, City, York Anne H. New Los herein mentioned) for themselves for Pekelis, Angeles, (Alexander Cal. H. some 5000 others toas whom allega- City, Spe. Advisor), New York for Amer- complaint tions apply,3 citizens of Congress, ican amicus curias. Jewish descent, United States of Mexican Cornell, Hays Arthur Garfield Julien attend the State of Fraenkel, Osmond K. all of New York Orange County, peti- filed a Okrand, City, A. L. Wirin and Fred both by fathers, tion as next friends, for Cal., Angeles, for Los American Civil against superintendents relief trustees and Union, liberties amicus curias. of several school districts and Christopher, Angeles, Charles F. of Los superintendent secretary and members Guild, Cal., Lawyers Angeles for Nat. Los city of a board of education. Unless we Chapter, curiae. amicus otherwise, sha!? indicate our use Kido, A. L. Wirin and Saburo both districts”, terms “school “districts” or Angeles, Japanese-American Cal., for “schools” will be understood as inclusive League. Citizens city of both district and school territories (Judicial Code, deprivation Section amended.) Original section “§ 43. Civil action jurisdiction. rights The original juris who, “Every person shall have district courts any under color of 4 * * (14) statute, ordinance, regulation, custom, diction as follows: Suits or deprivation rights. usage, any Territory, to redress civil subjects, or State subjected, all or in Fourteenth. Of suits at any or causes to be citizen of equity by brought person authorized law to United States or other within any person deprivation, jurisdiction depriva- to redress the thereof law, any statute, rights, any ordi privileges, under color tion or immu- nance, regulation, custom, usage, or nities secured the Constitution and State, right, privilege, any munity, laws, injured im or party shall be liable equity, secured in an suit States, any right proper proceeding United se for redress.” cured United States equal rights providing for of citizens of Rule Federal Rules of Civil persons Procedure, of all following with the United 28 U.S.C.A. section jurisdiction United Slates.” class suits. 723c as to persons term officials” in- jurisdiction “school within
or schools. States,” respondents. “petition cludes all because the *3 upon fails to claim can state a which relief petitioners taxpayers good All are of be granted.” with- The motion was denied disability, habits, suffering moral prejudice avail- out to the assertion of disease, qualified infectious and to be are legal by able of to way defenses answers of schools and fa- admitted to the use the petition. Respondents the answer in their respective cilities within their districts and the position reassert their to the law in as systems. dismiss, put in all of motion to issue and plan A common of the school officialshas subject relating allegations the adopted practiced, been and common and segregation.4 regulations adopted rules and have been After submission of the case for deci- effect, put whereby and into (using sion, opinion un- the court filed its written petition) “petitioners words of the and all der title “Conclusions of Court”.4a others of Mexican and Latin descent” are Thereafter, Findings of Fact and Conclu- “barred, precluded denied”, “attending and filed, support- of Law generally sions were and using receiving and the benefits and ing petitioners’ complaint. Respondents children”, education furnished to and objected Findings of Fact on the segregated solely are “attended schools ground that without the evidence showed by children of Mexican and Latin descent”. conflict children of Mexican descent school treatment, petitioners' To such and others being had and with fa- furnished objected, same and situation have children, fully equal cilities other school they have demanded and have been refused finding and that no had been thereon. made respective admission to within objection, de- overruled and they districts which would attend but for requested clined to finding make the practice segregation. by “That this ground is- that is immaterial petitioners suit proceedings, and seek to re- sue of the case. deprivation respondents by dress the herein ¿entered Thereafter, regulation, judgment color of was under [school officials] usage petitioners’ custom and segregation civil the effect all found to that rights, privileges practiced arbitrary immunities se- have been was and is and/or by discriminating cured to them and the Laws of the United and in violation guaranteed rights guaranteed and plaintiffs to each of them the Con- the Laws and Constitution stitution of re- United All United States. spondents enjoined States America.” against continu- ance of segregation, and costs were en- petition, To the the school officials re- tered several school districts. spond by motion to dismiss for lack of jurisdiction, Respondents appeal federal court because (to judgment use from the upon eight points the words of the motion) “this is not stated sim- ply equity suit at or in authorized as contentions that District person brought by any to be jurisdiction redress the was is without over deprivation, law, subject color matter stat- fed- because substantial utes, ordinances, regulation, custom, put issue, question or eral and that suit usage, any state, any right, privilege, is not authorized law redress al- immunity, by any leged deprivation secured rights law of the of constitutional providing rights support United States the findings do not of citizens of the United States or all conclusions. alleged large It is answer that a under the Amendment number school concerned are States have speak unfamiliar with unable been violated. English language. Other de affirmative 4a need The author
fenses
deems it
appropriate
mentioned for the reason that
find
note
ings
distinguished
Judge
are not
attacked
tx-ied to
fact
Senior
question
appeal
California,
is based
of the Southern District
petitioners’
rights
whether or
Paul
Honorable
J.
civil
McCormick.
liberty
depriving,
bur are
it is the
of their
words
up in few
Summed
property
process
of Cali
the State
due
petition
den
guaranteed
by the Fourteenth
denied,
denying,
has
fornia
States.5
the United
the Constitution
descent, resid
children of
school
described, the
Respondents
districts
the State
ing
are officers of
Department
laws of the State
Education
California in
equal protection
deprived,
thereby
state,
hereinafter
it will
*4
5
deprivation
life,
protection
any person
liberty,
deprive
toAs
tlie
shall
of
proc
property
process
liberty
property,
duo
of
or
of
without due
law.’
of the
ess of
clauses
Amendment,]
[Fourteenth
this
While
Ferguson,
Amendment,
Plessy
see
v.
163
attempted
Court has
to define with
1138,
537, 547,
41 L.Ed.
16 S.Ct.
U.S.
guaranteed,
liberty
exactness
thus
Pennsylvania,
256;
Gap.
Bell’s
R. v.
R.
the term has received much consideration
892;
232,
533,
L.Ed.
U.S.
10 S.Ct.
33
134
things
of the
some
included
22, 31,
Lewis, 101 U.S.
25
Missouri v.
definitely
doubt,
stated. Without
quote
American
L.Ed. 989. We
merely
it
denotes
bod
freedom from
Louisiana,
Sugar Refining
179
v.
U.
Co.
ily
right
restraint
also the
of the in
102;
43, 44,
89, 92,
L.Ed.
21
45
S.
S.Ct.
contract,
engage
any
dividual
to
to
undoubtedly
question does
act
“The
occupations
life,
of the common
to
of a certain class
discriminate
favor
acquire
knowledge, marry,
useful
to
es
discrimination,
refiners, but
this
if
children,
bring up
tablish
a home
to
reasonable distinction in
founded
principle,
a
worship
according
God
dictates
to the
course,
Of
if such
is valid.
conscience,
generally
his own
to en
arbitrary, op
purely
discrimination
joy
privileges long recognized
those
capricious,
pressive,
made to
or
de
orderly
common law as essential
color, race,
pend
na
differences
happiness
pursuit
Fol
free men.”
political
tivity,
religious opinions,
affili
lowing
Meyer
portion
this
of the
case are
having
ations,
no
other
or
considerations
Slaughter-House
cases cited:
In re
Cas
possible
duties of
connection with the
es,
36,
394;
21 L.Ed.
16 Wall.
Butchers’
taxpayers,
exemption
citizens
Slaughter-House
Union
Co.
Crescent
v.
favoritism,
pure
and a denial
he
would
Co.,
Landing
Live-Stock
U.S.
111
equal protection of the
to
laws
740,
652,
585;
S.Ct.
28
4
L.Ed.
Tick
And in Truax v.
less favored classes.-’
Hopkins,
356,
v.Wo
118 U.S.
S.Ct.
6
Raich,
33, 41,
7, 10,
36 S.Ct.
239 U.S.
1064,
220;
L.Ed.
30
v. Bar
Minnesota
L.R.A.1916D, 545,
131,
Ann.
60 L.Ed.
ber,
313,
862,
136 U.S.
10
34 L.
S.Ct.
Cas.1917B,
Hughes,
283,
Mr.
455; Allgeyer
Louisiana,
Ed.
v.
165 U.S.
speaking
justice,
for
an associate
578,
427,
832;
S.Ct.
41 L.Ed.
17
Loch
sought
justi
to
is
said:
“It
Tork,
45,
v.
ner
New
198 U.S.
25 S.Ct.
limiting employ
fy
[an act
this act
539,
937,
1133;
L.Ed.
49
3 Ann.Cas.
aliens]
ment of
as an exercise
Twining
Jersey,
78,
New
v.
211 U.S.
29
power
the state
make
reasonable
14,
97; Chicago, Burling
L.Ed.
S.Ct.
53
legislating
promote
classifications
Quincy
McGuire,
ton &
R.R.
Co. v.
259,
219
morals,
health, safety,
welfare
549,
328;
U.S.
S.Ct.
31
jurisdiction.
its
But
those within
Raich,
33,
Truax v.
23» U.S.
38 S.Ct.
authority,
range
the broad
admitted
337,
772, Ann.Cas.l918E, 593;
L.Ed.
62
legislative’
implies,
discretion that
it
Tanner,
590,
Adams v.
662,
244 U.S.
37 S.Ct.
possi
go
far
it
does not
as to make
1336,
L.R.A.1937F, 1163,
L.Ed.
61
deny
for
state
ble
lawful
in
Ann.Cas.3917D, 973; New Tork Life Ins.
habitants,
of their
because
race
na
Dodge,
357,
337,
v.
246
Co.
U.S.
38 S.Ct.
tionality,
ordinary
earning
means
772, Ann.Cas.l918E, 593;
L.Ed.
02
Tru
requires
It
livelihood.
Corrigan,
312,
ax v.
257 U.S.
42 S.Ct.
show that
work
liv
124,
254,
375;
L.Ed.
60
27
Ad
A.L.R.
occupations
ing in the
common
Hospital,
525,
kins v. Children's
261 U.S.
community
very
is
essence
394,
785,
L.Ed.
43 S.Ct.
67
24. A.L.R.
personal
opportunity
freedom and
1238; Wyeth
Cambridge
v.
Board of
purpose of the
Health,
474,
200 Mass.
86 N.E.
23
If
[Cases
secure.
cited.
this could 1
L.R.A.,N.S.,
Am.St.Rep.
solely upon
ground
refused
of race
Farrington
also,
Tokushige,
See
v.
nationality,
prohibition
of the de
646;
47 S.Ct.
person
equal protec
nial
Society
Sisters,
and Pierce v.
268 U.
tion
the laws
would be a barren form
510, 535,
S.
45 S.Ct.
L.Ed.
Meyer
Nebraska,
of words.”
v.
262 U.
ute adopted approving Committee, a resolution tee had but these School an elected continuing separate policy provide specifically for powers did not upheld The decision the case schools. on basis segregation children of school (Stephens, However, Committee. O. Boston had acts color. race J.) separate colored schools for long conducted exceptions ancestry no based of the upheld the has Supreme because the other than those contained child in §§ provide segregation the states repealed (Both Calif.Ed.C. as of 90 that facilities requirement upon the days 14, 1947.), which includes after Appel- group. segregated each June furnished Indians certain conditions segregation do not cases argue that lees (cid:127) Chinese, Japanese Mon- children argument in There is case. instant rule these, parentage. golian As there are briefs that we curiae amicus of the two requiring laws certain cases to independently on the whole strike should out separate Expressio schools. Un- attend segregation, ground on the that question ap- ius Est Exclusio Alterius. stirring events set men world recent noted, segrega- propriately concepts considered reexamination provided segregation tion for and the course, judges as well as all Of oth- fixed. referred to in the cited cases includes keep abreast of the times but ers must parents belonging children of to one or guard ever be on lest must j'udges great mankind.7 another races of outright legislation under the rationalize juncture at this interesting to note It is interpret. power to use We free too stipulated that parties that the of the case tempted by the siren who calls segregation race question is there no slow and tedious sometimes us writers, curiae brief in the Amicus case. legislation longer ways democratic No- howeve'r, agree so. do rea- progressive society. For respected in a sug- California law where in stated, a're sons we presently to he made can any segregation gestion that segregation cases do that the great races. one within rule that is reason the instant case and is a substantial it is that there Thus seen enough responding for not those case from in our difference light consider them we should Court, *7 Supreme by decided have been first curiae In the briefs. amicus as held could be possibly which difference a place authority justify- of no we aware scope such outside the case placing our any segregation fiat an administra- ing by put to However, not we are decisions. pr cited every tive case executive decree as seg- permits of the state law as this choice upon a The legislative to us is act. based is, stated, it that as regation only we have legisla- without segregation in this case is certain to Indians and confined definitely is support fatal collision into tive and comes law California That named Asiatics. legislation with the state. school segregation of include does not blood, The a State has Mexican their California because of children system by governed state-wide affirmatively free indicated school and definitely is law, general application out, by which that the local fact pointed judge the trial extent, by necessity by a un taken to considerable has been legislative is schools, der her city the direction of district and admit State of California country, trustees, fo'reign liv- superintendents boards o'r and children citizens of teachers. Section California Calif.Ed.C. b5601 the border. ing §§ across country parent foreign requires Educational only Code is 16005. Mexico any eight ages boundary.8 between child and six any California on years day teen respondents send him full time to the the acts of that It follows exceptions, school. There are some few but without entirely and are none of them pertinent here. There their notwithstanding are of California right empirically, The Somewhat it be children to used to attend schools organized up taught under laws mankind that was made has brown, yellow, white, right. black and red men. termed a fundamental See Wysinger designation Crookshank, has little or divisional Such Cal. anthropologists among privilege P. grant 54. “is Education adherents no scholarly constitution, A more nom ed scientists. ethnic and a le Mongoloid Caucasoid, gal right Ne and enclature groid, yet as much right as is a vested unsatisfactory, property." as an this is pp. 141, 23 Cal.Jur. 142. collectively attempt volume, p. sort all mankind In the same 161: “It is now groups. that it distinct settled is not into violation of the color under and is A.L. has been performance Therefore, However, practice law. since the com California pretense R. that California several con plained continued of has conceding for authorizing ex apparent California law years, enact secutive legally could out continues, fact stands it officers, peace practiced, ecutive segregation has Mr. petitioners California violated cannot unchallengeable be said laws contrary enacted Douglas’ taking has admonition but so done Justice action By practice. with such in a court. federal inconsistent wholly children of school segregation enforcing the have herein case we In view of their will descent Findings taken contention California, respond- laws contrary to of Law support Conclusions Fact do pro- law the federal have violated ents wholly unmeritorious. Judgment is and the Amendment in the vided findings in this pleadings, judgment them depriving Federal “Mexican 'refer case process of due property liberty and Latin extraction”, descent and but does equal pro- denying to appear segregation that any of school the laws. tection of children other than those of Mexican de- practiced. Therefore, scent was we have that the point this be said may confined our ap seg- comment thereto-. If the through stopped practice could regation all children of Latin descent California plication of and extraction in addition to those of Mex- Courts, this State ican descent were Doug practice included Mr. relevancy. idea is of plan, would, course, its illegality point clear made las the same basis as that herein he found. supra, when Sc'rews addition, howeve'r, impossibility does the Fourteenth said being reason for the the fed inclusion merely because play into not come segregation plan all children of Latin the state law law or eral descent and extraction palpable and the “It violated. act is purports to officer impossibility its enforcement would some one is .of when when applicable plan brand on its that action.” void face.9 deprived of federal appropriate is as And it ours.) (Emphasis Affirmed. *8 Doug here, say Mr. what for us case, DENMAN, Judge (concurring). Circuit the cited like in in situation said las applied statute agree that when this "We in is said in the court’s I concur what U.S.C.A. 41(14) case when agree opinion § our with the omission hut cannot [in so as to construed applied] it should Seccombe, Lopez of the consideration of v. between proper balance respect profession. I widely discussed in government in federal states and opinion we am should not also act Punishment for enforcement.” place upon reliance primary Home Tele or both fed legal either Angeles, would phone Telegraph & Co. v. Los States governments. United eral and particulars in relevant here is over Lanza, 260 U.S. v. ruled Snowden and Screws cases. Louisiana, 272 314; Hebert v. precedent the recent decision in The organic law of or of the na S.D.Cal., E.Supp. cited and com concurring- require tion to children whom racial mented in the opinion, judgment differences separate exist attend wont to uncontested stipu schools, provided the schools and is lation, supported alone formal findings every substantial respect. But of facts and conclusions of law. such event established No discussion principles appears separated in respect record, or memorandum was And no separation race. may be had, filed, and no counsel in the instant notwithstanding the absence of statutory brief, constitution mentioned it in his al therefor.” same lawyer was chief counsel in both (Stephens, .J.) Idle case of Lopez Seccombe, v. D.C. cases. C Hughes, infra, Snowden states'the law as Depart- Spanish recently the head of the is, requirements now fo'r violation of Language, Foreign ment the Office of
the Fourteenth Amendment not mentioned Information, and Division of Officeof War opinion. in the court’s- Office Spanish speaking director Seccombe, (1) Lopez Mayor Coordinator inter-American affairs Bernardino, D.C., citizens Angeles, California. All are California, of San S.D.Cal., F.Supp. editors were of the United States. The two support taxpayers contributing to the What our decision here does is to follow denied facilities them. precedent Judge Yankwich’s decision Lopez park Orange sought case. It is not All admission to only in three County public and excluded guilty officers are area and its facilities were perversions such because of their Latin descent. “privileges long .therefrom recognized at common law was not a mere casual error of a to This essential orderly pursuit happiness priest and park. minor at the The free official 1men.” county and each of on several adjoining an a similar the two editors discrimination pnly against protested city made not occasions to these officials the descendants requested permission of Mexican nationals their enter descendants, infant, public but, adult and all na- these facilities because of their descent, tionals countries. permission Latin such Latin was denied them. San Bernardino established a Lopez park area In the case of ground recreational et al. v. an Seccombe al., supra, editors, priest et swimmming pool bath the two containing suing mayor, councilmen, for themselves as American city house. The chief citizens police eight (8,000) all and thousand Bern- park superintendent, San through agents, barred their descent, from persons sought an ardino of Latin councilmen, persons of Latin entry injunction area all mayor, into against the merely of The exclusion was not superintendent descent. chief police park Latins, people Mexicans but of all discriminatory The case exclusion. ruled, from the or more American score Latin Judge was tried Yankwich Italy, Republics Spain case, and Portu- inas such discrimina- instant per- gal, tory as the character of outstanding barring descend- of the class of Latin actually people process sons makes clear. excluded ed violated the due equal protection of the Fourteenth clause The Reverend Nunez is a Catholic R. N. Amendment. facts of discrimina- priest ancestry. Eugenio Nog- of Mexican tion persons as to all of Latin descent Rico, ueras is from of Latin an- Porto found, stated, injunction as above and an cestry, college graduate, who is an editor eight issued holders. office publisher. Lopez Ignacio another *9 In newspaper the San answer Mexican descent a Bernardino case the editor is of California, University graduate of the officers denied the exclusion of of the to define with i'ommo.n contract, ly quire of the has received guaranteed also long children, merely [D] stated. “While generally to recognized useful included freedom dictates establish occupations [6] [2] this Without much [by knowledge, exactness things at Amendment], due worship engage consideration enjoy common the individual doubt, his home and bodily process has not life. own those [4] in God it denotes law as essen restraint but liberty Tol, conscience, attempted clause privileges the term according bring definite marry, [1] to ac some thus (ho up Nebraska, tial the ease holding Constitution the foreign languages Fourteenth Amendment. Constitution Section 3. ifornia, according charge free “I do to 626, men. — Constitution and that may solemnly 262 U.S. duties of the orderly pursuit [Citing prohibiting be,) California, in best I swear 390, 399, will school violates oases.]” office 29 A.L.R. I faithfully (or State will Article my ability.” teaching happiness affirm, Meyer 43 S.Ct. support * * * States XX, Cal dis plaintiffs. ing beauty Orange the instant case these Brandéis and Cardozo—the trustees, Palestine, County descendants of up- nationals of officers sworn to among people hold began of the whose later United States our so- civilization, the constitution of the State of Cali- called Christian as well could fornia,2 brazenly proclaim guilt in segregated their Hitler’s anti-semitism discriminatory country gave violation of the state in long have a start which educational youth laws. What is overlooked in its to aid in its destruction. the court’s ap- is the fact that the officials, to such school who so vio- pellants themselves declare have vio- openly late their oaths of office and break and, effect, lated say, their oaths of office both the state and federal laws and who you going “Well what are to do it?” about example boys girls, set such an for their brief states grow that these adolescents are entrusted “The situation in California as conclu- up way in the American of life. In this sively shown the record is: connection should be noted Section legislative “1. department Code, of the Criminal 18 U.S.C.A. § clearly State has expressly prohibited prosecuted, which Screws makes the establishment separate a felony schools for wrongdoing of the same pupils. Mexican succeeding Section U.S.C.A. § remedy given by the civil here creates Department “2. The Judicial Rutledge’s opinion As court. at emphatically State has declared it to be un- U.S., page 1044 119 of 325 of 65 separate lawful establish schools for S.Ct., 1495, A.L.R. pupils (Wysinger Crookshank, states, they Screws case “twin sec- 82 Cal. 54).” 23 P. tions,” “no in which differences California is a state as large as France rights guarded.” basic and having population at least a fifth as large long It is accord with the established as that of the United States when precedent Anglo judges Saxon to call the Fourteenth adopted. Amendment was prosecuting to the attention of the All the author- nations of the world have contrib- appearing litigation ities facts uted before people. to its Were the prin- vicious ciple them which sought warrant consideration to be established in Orange custom, Following and San of an indictment. Bernardino Counties followed elsewhere, judge the attention of the senior scores of school districts the District of Southern California and adolescent minds of American children pro- directed grand juries the wine To foremen of its infected. would become coun- northern disclosed. valleys hills of the facts here ducing whose Italians emigrated thousands ties enough today it is (2) law is As the could well generation descendants now third violates the that a state official officials law-breaking school have their described manner federal law in the north segregate descendants Co. v. Telegraph Telephone & Home European nationals. Angeles, 227 U.S. due bring within the him Likewise in the raisin districts of the clause process equal protection San Joaquin Valley to which came the facts Fourteenth Amendment. On thousands of Armenians who have contrib- *10 Supreme Court shown in the uted prominenee to figures national such not today would Angeles of Los Saroyan as Plaig Fatigan. So Amendment. be held to have violated that fishermen, coastal town largely homes of In Hughes, Snowden v. 321 64 U.S. nations, the Mediterranean his- 397, 401, S.Ct. 88 Italian, Supreme L.Ed. antipathies toric Dal- Greek and boundary determined the matian line of per- injected nationals could be petuated cases of officials’ violations of estate law in their citizen school children. within and without the Fourteenth Amend- Or, go to an to the descendants of ment. It is not enough that the federal nation, ancient Mesopotamian whose facial or state law is violated. In addition either inspir- characteristics still survived in the law must be not “fair on its face” oi 784 deprive charged purpose the. purposeful “had to “intentional or an there must he * * * there discriminatory right,” favor design prisoner to of a constitutional rather than right aby another” to be tried class over “the or one individual re- by specific intent ordeal." "For the administering the law. a deprive by to quired is an intent the Act hoard, There, an election where Illinois made person of a which has law, had of Illinois in claimed violation express specific either terms duly elected a certify a as failed citizen States the United or laws of office, held nominee for a state it was Page interpreting them.” or decisions protection of equal he was denied not S.Ct. 1037 65 page 325 at U.S, was not This the Fourteenth Amendment. even case is respects In the instant three remedy because he a under the had There stronger discrim- than case. law the Screws was because that more killing prisoner was held inatory show- was no on face there its possible a purpose- than violation ing or of the board’s intentional federal punishable class.” “particular ful discrimination of a violated, punishable though courts also holding the Amendment not U.S, There under which Court, page at state law. the law 8 of 321 “fair its face” arrest was made was on S.Ct, 401 of 64 88 L.Ed. states be jury to the case was to the viola- returned a incidental distinction between mere proper tried under a instruction non-discriminatory tion of state law killing whether the “intent” with which the purposeful discrimination, as fol- “class” was Amend- committed was to violate lows: its regulation ment. Here “on shows by state “The unlawful administration equal protection face” the denial of face, its statute on officers of a resulting fair laws, prevention of which is unequal application those in its very purpose Here Amendment. alike, is not be treated entitled to deny protection “intent” equal there is protection unless a denial of pro- regulation the enforcement in present shown in it element to be an claimed briefs this court. purposeful tentional discrimination. This or (3) applicable Since criterion taken may appear action on face of segregating regulation whether the each person, respect particular to a class discriminatory on district is and not fair Refining Sugar McFarland v. American cf. face, clearly pertinent its it is Co., U.S. even give fail chil- facilities to the may only or it be shown dren the two classes of schools. discriminatory showing extrinsic evidence design to individual class over favor one English The teacher of a class of both another itself, inferred from the non-English speaking pupils and same Hopkins, 118 U.S. Yick Wo pu- facility English speaking 373, 374, 1064, 1072, 1073, S.Ct. pils that the same teacher be to would ” * ** (Emphasis supplied.) up entirely speaking class made of those English. teaching There is diverted to the telephone Angeles In the Los case the English Spanish speaking pupils city fact was au- finding sole that the professional much the teacher’s energy telephone rate thorities had established a and time which given otherwise would confiscatory. alone it On this English an speaking The district class. city Four- was held that the violated inferentially finding court XI, so holds in its teenth could be no Amendment. There finding authorizing rate that the fixing Nor was was not “fair on its face.” “English language-deficiencies some city’s purposeful any finding of the ancestry the children of Mexican as such design
discriminatory to favor one indi- elementary public children enter life > vidual over another. class beginners may justify differentiation by public school authorities in the exercise Screws v. of their reasonable discretion 1495, 103, S.Ct. A.L.R. pedagogical methods of instruction validity 1330,upholds the the twin sec- *11 pursued pupils, foreign different tion 19 of the Criminal Code language handicaps be to such a de- complete charge vagueness of a that it gree pupils in elementary schools as by construing crime, fails to describe n require separate separate to classrooms treatment (at apply only page where to U.S, 107 of * * * ,1038 segregation Omnibus S.Ct.) parties ancestry from children of Mexican elementary rest body the student grades in this the schools involved war- handicaps language because (Empha- ranted the record before us.” supplied.) sis that a judicially This is aware century ago taken when California was over majority population genera- its Mexican. Four people tions of these educated English speaking should To these schools. generations added third and second of succeeding immigrants Mexican Cali- large A very percentage fornia. present day school children descended English speaking. nationals Many of those of older families established speak Spanish. do All such against by impaired are discriminated facility teacher, occupied teach- ing English to their classroom associates— n compared with those attending English speaking pupils. DE WITT v. WILCOX.
No. 11424. Appeals,
Circuit Court of Ninth Circuit.
March Carter, Ally., S. Ernest M. U. James Walker, and Ronald Asst.
A. Tolin U. S. Angeles, Altys., (Herbert Cal. all Major, Wenig, Army, U. S. E. J.A.G.D. Francisco, Cal., ap- counsel), Sau pellant. Wirin, Los Angeles, A. Arthur Cal., L. Hays Fraenkel, Garfield and Osmond K. Dembitz, City, both of New York Nannette C., Washington, Marion D. P. Ames